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Sara Cole et al v. Town of Los Gatos et al

April 27, 2012


Trial Court: Santa Clara County Superior Court Superior Court No.: CV109033 Trial Judge: The Honorable James P. Kleinberg (Santa Clara County Super. Ct. No. CV109033)

The opinion of the court was delivered by: Rushing, P.J.


After attending a baseball game at Blossom Hill Park in Los Gatos, plaintiff Sara Cole returned to her vehicle, which she had parked between the north edge of the park and Blossom Hill Road. While standing near the back of her vehicle she was hit by a car driven by defendant Lucio Rodriguez, who would eventually plead guilty to driving while intoxicated. Plaintiff brought suit against Rodriguez and the Town of Los Gatos (Town), alleging as to the latter that the road and the area where she had parked--both of which were Town property--were in a dangerous condition because their configurations, coupled with their relative locations, induced park visitors to park where she had parked while inducing eastbound drivers on Blossom Hill Road to drive through that area in order to bypass stalled traffic on the road. The trial court granted Town's motion for summary judgment, finding no evidence that any dangerous condition of Town's property was a proximate cause of plaintiff's injuries. We hold that, on the contrary, the evidence before the trial court raised numerous issues of fact concerning the existence of a dangerous condition and a causal relationship between the characteristics of the property and plaintiff's injuries. We will therefore reverse the judgment.


The accident occurred on the afternoon of September 9, 2007.*fn1 Plaintiff had diagonally parked her GMC Tahoe, a sport utility vehicle over 18 feet long, in a graveled strip running between the north edge of the park and Blossom Hill Road. The road, the park, and the graveled strip all belong to Town. At the moment of impact plaintiff was loading a bicycle into the rear of the vehicle. As she did so, Rodriguez, who had been driving eastbound on Blossom Hill Road after consuming either whiskey or a wine-like beverage mixed with juice, left the road and entered the graveled area, where he collided with plaintiff, inflicting serious injuries. After stopping briefly, Rodriguez drove home to see his wife because he expected to be arrested and imprisoned as a repeat drunk driver.

Plaintiff presented evidence that just before the accident, eastbound traffic on Blossom Hill Road had been brought to a stop next to the graveled area to wait for another eastbound driver, Carrie Cummings, to make a left turn into her driveway across the road from where plaintiff was parked. Plaintiff theorized that Rodriguez had left the road in an attempt to bypass these cars. No witness actually saw him do so, but plaintiff presented evidence, discussed in more detail below, that such maneuvers were common at that location, as was the practice of diagonal parking in the graveled area, and that Town had notice of these facts. Plaintiff also presented the lay opinion of Cummings, to which no objection was lodged, that her perception of events was most consistent with Rodriguez's having left the road to bypass stalled traffic.

Cole filed a complaint for damages against Rodriguez and Town, alleging that her injuries were the proximate result of both Rodriguez's negligent driving and a dangerous condition of public property. Town was alleged to have created or maintained a dangerous condition by, among other things, "fail[ing] to provide adequate time and distance for safe merging of the lanes of traffic," "fail[ing] to provide a reasonable and effective barrier between the roadway travel surface and the parking area" or, alternatively, to "prohibit or limit parking in the area," "fail[ing] to properly construct, maintain, and isolate the parking area from the roadway consistent with reasonable traffic engineering principles," failing to provide "reasonably required protective barriers, curbs, or bollards," "fail[ing] to safely design, construct, and maintain the area for parking," "fail[ing] to sign, warn, or notify Claimants and other foreseeable users of the danger existing at the site of the injury," "fail[ing] to provide and/or maintain adequate lane channelization, signals, devices, and pavement striping so as to create a trap," "fail[ing] to ensure that the roadway merge was not visually confusing, misleading, and dangerous," and "fail[ing] to remedy the hazardous condition prior to Claimants' injuries in light of: pre-collision complaints, accident history, and traffic volume." These factors, plaintiff alleged, "individually and in combination, constituted a dangerous condition that should have been, but was not, remedied or warned of" by Town's agents.

Town moved for summary judgment on several stated grounds.*fn2 As will appear, nearly all of its arguments fall back on the premise that that plaintiff is unable to establish that any characteristic of the property was a proximate cause of her injuries. Plaintiff countered with, among other things, the declaration of a traffic expert opining upon various deficiencies in the configuration of the road and graveled area and their causal role in the accident. Town objected to much of this declaration on grounds of relevancy and lack of foundation. The trial court sustained many of Town's objections and granted summary judgment, ruling that plaintiff had not presented "any admissible evidence that demonstrates . . . the existence of a physical deficiency in the subject public property, or [that] such defect actually caused or contributed to the third party conduct that injured Cole."

Plaintiff brought a motion for new trial, which the trial court denied. This timely appeal followed.


I. Introduction

A party can obtain summary judgment only by establishing the merit of his case "as a matter of law." (Code of Civ. Proc., § 437c, subd. (c).) The phrase "as a matter of law" is another way of saying that the evidence available to the parties, and placed before the court in support of and opposition to the motion, raises no material issue that a trier of fact could resolve in favor of the party opposing the motion. The function of the motion is thus to provide a mechanism, short of trial, for "cut[ting] through the parties' pleadings in order to determine whether . . . trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; see Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) A moving defendant establishes a right to summary judgment by showing that the plaintiff lacks the evidence to sustain one or more elements of the cause of action pleaded by him or to overcome some defense the defendant is prepared to prove. (Code of Civ. Proc., § 437c, subd. (o)(2).) Every meritorious motion thus rests on establishing two propositions: The opposing party is unable to present evidence in support of a specified fact, and that fact is essential to establish his cause of action or to overcome a defense. The first proposition may of course be established by uncontroverted affirmative proof that the specified fact does not exist, but it may also be established by showing that the opposing party bears the burden of proof with respect to the specified fact and that he has no evidence with which to carry that burden. In either case, once the first proposition is established--the unprovability of the specified fact--the only question presented is whether that fact is indeed vital to the opponent's case. This is a question of law for the court. If the answer is affirmative--if there is no way for the opposing party to prevail without the specified fact--the movant is entitled to judgment "as a matter of law."

The plaintiff can defeat a defense motion for summary judgment by showing either that the defense evidence itself permits conflicting inferences as to the existence of the specified fact, or by presenting additional evidence of its existence. (See Code of Civ. Proc., § 437c, subds. (c), (p)(1).) The dispositive question in all cases is whether the evidence before the court, viewed as a whole, permits only a finding favorable to the defendant with respect to one or more necessary elements of the plaintiff's claims--that is, whether it negates an element of the claim "as a matter of law." (§ 437c, subd. (c).)

Because summary judgment can raise only questions of law, we review the trial court's ruling without deference. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60; Orrick Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 1056; Iverson v. Muroc Unified School Dist. ( 1995) 32 Cal.App.4th 218, 222; Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.) And because summary judgment presents a risk of infringing on the opponent's rights--particularly the right to jury trial--we must strictly scrutinize the moving party's proofs while liberally construing those of the opposing party. "All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment." (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)

The first step in analyzing any motion for summary judgment is to identify the elements of the challenged cause of action or defense in order to isolate those targeted by the motion. Plaintiff's cause of action against Town is defined by statute, specifically the portion of the Government Claims Act entitled Liability of Public Entities and Public Employees. (Gov. Code, §§ 814-895.8, added by Stats.1963, ch. 1681, pp. 3267-3284; see City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 741-742.) These statutes declare a general rule of immunity (Gov. Code, § 815) and then set out exceptions to that rule. Plaintiff invokes the exception for a dangerous condition of public property, as set out in Government Code section 835 (§ 835).*fn3 As there laid out the cause of action consists of the following elements: (1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff's injuries; and (5) compensable damage sustained by the plaintiff.

Town was entitled to summary judgment if it demonstrated either that plaintiff was unable to prove one of these elements or that Town possessed "a complete defense to [plaintiff's] cause of action." (Code Civ. Proc., § 437c, subd. (p)(2), see subd. (n).) The only defense argued in support of the motion was the general statutory immunity of public entities against liability for torts.*fn4 (See Gov. Code, § 815, subd. (a).) This assertion added nothing of substance to the motion; it was simply another way of stating that plaintiff could not establish all of the statutorily defined elements of liability.

Another of the grounds Town asserted for the motion--the absence of a "special relationship" between Town and plaintiff--may also be disregarded as a distinct basis for summary judgment. It is not an independent defense, sufficient in its own right to defeat plaintiff's claims, but an anticipatory rebuttal to certain claims plaintiff might make--specifically, that Town owed her a heightened duty under cases predicating such a duty on a "special relationship." (See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129 (Zelig); Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 158; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 788-791; Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, 1472-1473.) Since plaintiff placed no reliance on such a relationship, Town's denial of that premise cannot provide a sufficient basis for the judgment under review.

It thus appears that the only colorable grounds for the motion were that plaintiff was unable to establish two elements of her cause of action: a dangerous condition of public property, and a causal relationship between that condition and plaintiff's injuries. The question on appeal is whether the evidence before the trial court established the absence of a triable issue of fact with respect to either of these elements.

II. Dangerous Condition of Public Property

A. Plaintiff's Theory

A " 'dangerous condition' " for present purposes is "a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used." (Gov. Code, § 830 , subd. (a) (§ 830(a)).) "The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion." (Zelig, supra, 27 Cal.4th 1112, 1133; accord, Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148 (Bonanno).) To establish a qualifying condition, the plaintiff must point to at least one " 'physical characteristic' " of the property. (Song X. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1187.) However the location of property may constitute a qualifying characteristic. (Bonanno, supra, 30 Cal.4th at pp. 154; see id. at pp. 144, 146, 149-151.) Further, as the statutory language makes clear, a qualifying risk need not be one posed to users of the public property; it may be a hazard presented to users of "adjacent property." (§ 830(a).) It follows that, since all of the property involved here belonged to Town, a dangerous condition might consist of any characteristic of any part of that property that foreseeably endangered users of any other part.

Plaintiff's theory is essentially that the configuration of Blossom Hill Road and the adjacent gravel area created a danger to users of the latter in that eastbound drivers on Blossom Hill Road were often induced to leave the road (as Rodriguez did) and enter the graveled area, where they posed an obvious hazard to persons who had parked there (as plaintiff did), and particularly those standing near the rear of a vehicle parked diagonally, as was the custom. Of course there is always a risk that a vehicle operated on a highway may leave the road by accident. But according to plaintiff's theory, it was a common practice for drivers to do so here, quite deliberately, in order to bypass stopped traffic.

This premise was amply supported by evidence. Carrie Cummings, the local resident who had just turned left into her driveway when the accident here occurred, declared that "[n]early every time" she executed such a turn with cars behind her, someone would pass on the right. Sharon Perry, a regular user of the park who often parked in the graveled area, declared that eastbound drivers frequently turned left or executed U-turns in this area, and that three-quarters of the times this happened, "another driver passe[d] the turning driver on the right." Debbie Fumia, another frequent user of the park, estimated that she witnessed such a maneuver "at least 1 time each week during the baseball season." William Cole declared that "[e]very one or two weeks," he "would see an eastbound vehicle on Blossom Hill Road pass . . . [a] left-hand turning driver[], and the cars stacked up behind, on the right by driving at least part of the way through the gravel area near where [plaintiff] was injured."

Plaintiff also presented ample evidence that the graveled area was located and configured in a manner that encouraged its use for parking by visitors to the park. Plaintiff's husband declared that over a period of seven years he had visited Blossom Hill Park at least 500 times, including some four times a week during baseball season; that the graveled area was "by far the most convenient location for parking for little league games"; and that cars were "always" parked there during such games. Dave Burt declared that he had visited Blossom Hill Park at least 450 times in connection with games at the baseball field there; that the area where plaintiff was injured provided much more convenient access to the baseball field than a parking area on the south side of the park; and that he parked in the northern area about half the times he visited the park. Five other park users made declarations to similar effect.

The evidence also supported a finding that the hazard posed by these two potentially conflicting uses was exacerbated by the fact that--again with tacit official approval--persons parking in the area customarily did so on the diagonal. Carrie Cummings testified that when cars were parked there for little league games, they "always" parked diagonally. Plaintiff presented similar averments from herself, her husband, and seven other local witnesses.

The foregoing evidence would seem to amply support a finding that a danger existed at the site of the accident of just the kind of injury plaintiff sustained. It would also support the attribution of this danger to the physical characteristics of the property. At least three such characteristics could be found to constitute an inducement or temptation for drivers to act as Rodriguez did: the presence of driveways across the street from the graveled area, which provided an occasion for some drivers to turn left, which in turn required them to stop and wait for oncoming traffic to clear; the absence of a second eastbound lane, which resulted in the formation of obstructions or stalls behind left-turning drivers; and the narrowness of the pavement, which made it impossible to pass such an obstruction on the right without entering the graveled area. In addition, plaintiff relied heavily on the holding of Bonanno, that a dangerous condition may arise from the location of public property or "its relationship to its surroundings" (Bonanno, supra, 30 Cal.4th at p. 149; see id. at pp. 144, 146, 149-151, 154) including its "adjacency" to property on which an injury-producing condition exists (id. at p. 154, citing Holmes v. City of Oakland (1968) 260 Cal.App.2d 378; see Cal. Law Revision Com. com., reprinted at 32 West's Ann. Gov. Code (1995 ed.) foll. § 830, p. 299; 2 Van Alstyne et al., Cal. Government Tort Liability Practice (Cont.Ed.Bar 4th ed. 2002) Dangerous Condition of Public Property, § 12.18, p. 769).*fn5

Plaintiff pointed to several other physical features that, according to her, contributed to the danger. A barrier fence at the west end of the graveled area was too short to prevent or discourage eastbound drivers from entering that area. At the same time, according to plaintiff, at least three characteristics of the graveled area induced park visitors to use it for parking. One was its proximity to the park. In addition, although Town had caused a fence to be constructed between the parking area and the park, it placed gaps in the fence at 50-foot intervals for the acknowledged purpose of providing direct entry into the park for people parking in the graveled area. Town also placed "No Parking" signs at two specific points ...

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